At a session of the Congressional Civil Justice Caucus Academy held in the Rayburn House Office Building on October 21, CCL President Robert S. Peck argued against a return to the 1983 version of the federal civil procedural rule that sanctions lawyers who file frivolous claims or defenses.  Representing the American Bar Association, which opposes the legislation at issue, Peck explained that "we have seen this movie before" and found it a disaster.

 From 1983 to 1993, Federal Rule of Civil Procedure 11 required judges issue mandatory sanctions against lawyers who filed so-called frivolous claims or defenses.  Experience made supporters of the stringent rule back off their support.  As Peck explained, judges applied inconsistent and unpredictable sanctions, including against lawyers who argued for positions subsequently adopted by the U.S. Supreme Court.  Perhaps even more importantly, the 1983 version of Rule 11 was used for unintended purposes.  Motions made pursuant to Rule 11 were not offered against frivolous actions, which were easily defeated on the merits, but as a tactical ploy against meritorious actions to make them more expensive to pursue. 

The Judicial Conference of the United States, the governing body of the federal courts, amended that version of Rule 11 because it resulted in significant collateral litigation, making cases more expensive, wasteful, and dilatory.  It was used against civil rights plaintiffs more frequently than against any other party.  Moreover, congressional imposition of an amended Rule 11, which would lack demonstrated need, is inconsistent with the Rules Enabling Act, the legislation regarded as a treaty between the legislative and judicial branches, that sets forth a considered procedure for changing the federal rules that utilizes input from the public, review within the judicial branch, and an opportunity for congressional veto.ssss

 Supporting the rule change through legislation against Peck was Shooky Hardy law partner Victor Schwartz, general counsel of the American Tort Reform Association, and Bradford Berenson, Vice President and General Counsel of General Electric.